Rome Under Seven Hills? An Archaeology of European Private Law

Abstract

The modern market economy rests on private law foundations which were laid long ago, but which have also developed over time. In this contribution, we reconstruct the history of the law of market society – or what ordoliberals depicted as ‘private law society’ – against the backdrop of the European economic constitution. Integration through private law in the European Union forms only the latest stage of a ‘millennial’ development of legal unification within and beyond the confines of what we today know as nation states. As will be shown, the Europeanization of private law draws on, but also departs from, different forms of private law integration, which developed in (Western) Europe between the 11th and the 20th century. Based on these historical precedents, we elaborate on three distinct ‘projects’ of European private law integration, dubbed civil code, ius commune, and ius communitatis. These differ in how the political and economic functions of private law are articulated and in how private law shapes and specifies European integration as a market- or polity-building process.

Keywords: European private law, legal history, economic sociology of law, European economic constitution, private law society, market society, codification, civil code, European Civil Code, ius commune, politicization of private law, ius communitatis, regulatory private law